Citation Nr: 0735240
Decision Date: 11/08/07 Archive Date: 11/26/07
DOCKET NO. 05-28 422 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a low back
disorder, including as secondary to a service connected right
knee disorder.
2. Entitlement to service connection for a chronic skin
condition, including as an undiagnosed illness manifested by
involvement of the skin due to environmental hazards from the
Gulf War.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1990 to February 2000. This case is before the Board
of Veterans' Appeals (Board) on appeal from an April 2005
rating decision by the Waco Regional Office (RO) of the
Department of Veterans Affairs (VA) that denied service
connection for the following: residuals of a right knee
injury, a back disorder, and a skin disorder. The veteran
perfected his appeal regarding the issues. In October 2005,
the veteran testified before a Decision Review Officer (DRO);
a transcript of that hearing is of record. In November 2005,
the RO granted service connection for residuals of a right
knee disorder. As this was a grant of the full benefit
sought and the veteran has not appealed the November 2005
decision, the only issues remaining before the Board are as
stated on the previous page.
The issue seeking service connection for a low back disorder,
including as secondary to a service connected right knee
disorder is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
It is not shown that the veteran now has a chronic skin
condition and the medical evidence does not show that the
veteran has an undiagnosed illness manifested by involvement
of the skin.
CONCLUSIONS OF LAW
Service connection for a chronic skin condition, including as
an undiagnosed illness manifested by involvement of the skin
due to environmental hazards from the Gulf War is not
warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.317 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify & Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the agency
of original jurisdiction (AOJ). Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
Here, the VCAA duty to notify was satisfied by way of letters
sent to the appellant in August and October 2004 (prior to
the April 2005 rating decision) that fully addressed all four
notice elements. The letters informed the appellant of what
evidence was required to substantiate the claim and of the
appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the AOJ.
Regarding the duty to assist, the veteran's service medical
records (SMR's), private treatment records and VA treatment
records have been associated with his claims file, and the RO
obtained all relevant, available medical records identified
by the veteran. In determining whether the duty to assist
requires that a VA medical examination be provided or medical
opinion obtained with respect to a veteran's claim for
benefits, there are four factors for consideration. These
four factors are: (1) whether there is competent evidence of
a current disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court of Appeals
for Veterans Claims has stated that this element establishes
a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service.
The types of evidence that "indicate" that a current
disability "may be associated" with military service
include, but are not limited to, medical evidence that
suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the RO arranged for a VA examination to be
conducted to determine the nature and etiology of the
veteran's skin condition, including as an undiagnosed illness
manifested by involvement of the skin due to environmental
hazards from the Gulf War. However, the veteran failed to
report for the examination scheduled in March 2007, and has
not offered any explanation for his failure to appear or
requested to reschedule the examination. The Board notes the
veteran testified that he sought post service treatment
initially in the summer of 2005 (approximately in July 2005
timeframe), however, remanding the claim to obtain such
treatment records would needlessly tax VA resources as the
record showing treatment for a skin condition in 2005 would
not change the outcome of this decision; since the veteran
failed to report for his VA examination, other elements
necessary to establish service connection for a skin
disorder, including whether the veteran has a current chronic
skin condition that is related to his service or inservice
rash, or in the alternative an undiagnosed illness manifested
by involvement of the skin due to exposure to environmental
hazards in the Gulf War have not been established. See Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the
duty to assist is not a one way street). The veteran has not
identified any further pertinent evidence that remains
outstanding. Thus, VA's duty to assist is also met.
Accordingly, the Board will address the merits of the claim.
II. Factual Background
On his August 2004 VA Form 21-526, the veteran checked
"yes" to the question that asked "[w]ere you exposed to an
environmental hazard in the Gulf War?". He indicated that a
skin disorder was a result of such exposure. He left the
block blank when asked, "[w]hat was the hazard?".
SMR's included a February 1992 record that showed that the
veteran sought treatment for a rash to the body, arms and
legs for the past three days. He denied any changes in body
soaps, deodorant, or eating habits. It was noted that he was
working in the scullery washing dishes. Examination was
positive for erythemic macules noted on trunk and extremities
bilaterally. It was negative for crusting or drainage. It
appeared in a nondefnite pattern. The etiology was unknown.
The assessment was rash with an unknown etiology. He was
treated with Benadryl. He was to follow up on occasion as
required. An Addendum noted that the erythematous macules
were well-defined with sharp borders. The rash was
aggravated by heat. He was advised to wear clean and dry
clothing. Other SMR's were negative for any complaints,
treatment, or diagnoses of a skin disorder.
The veteran's DD Form 214 sowed that he served in the Navy
from August 1990 to February 2000.
Post service medical records included treatment records from
Lubbock VA Outpatient Clinic. An October 2004 treatment
record noted that the veteran was allergic to class of
medications called sulfonamides (SULFA allergies) which
caused urticaria and some shortness of breath as a child.
Physical exam of the skin showed that the skin was warm and
dry, without rash or pallor, cyanosis, or jaundice.
August to September 2005 treatment records from Amarillo VA
Medical Center were negative for any complaints, treatment,
or diagnoses of any type of skin disorder.
During his October 2005 DRO hearing, the veteran testified
that he sought treatment in 1992 for his skin condition due
to an allergic reaction while he worked in the scullery. He
indicated that he did not seek further treatment because he
just learned how to tolerate it. He indicated that the rash
was present at the time he left the military in February
2000, but that it was not noted on physical examination. He
did not seek treatment post service until the summer of 2005
at Lubbock VA outpatient clinic. He was told that he had a
fungus and he took two doses of medication, in which the
redness went away. He still had white blotches from where
the redness was prior to the breakout. He told the treating
provider that he had the same thing in 1992. He indicated
that had two more breakouts since approximately the July 2005
timeframe. The rash was located on his arms, shoulders,
chest, and back.
June 2006 to March 2007 treatment records from Amarillo VAMC
showed that in June 2006, the veteran had complaints of an
intermittent rash on his chest and abdomen in which he
claimed a dermatologist placed him on Nizoral cream. It
appeared that related treatment records were unavailable as
the veteran indicated that notes from the dermatologist as
well as the medication were "not on there." He wanted to
see the dermatologist again, but had no rash right now. He
stated that when he became hot and sweaty, he would have
little reddish papules, which was probably prickly heat. He
was prescribed Kenalog 0.1% cream.
III. Criteria
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R.
§ 3.303.
To establish service connection for a disability, there must
be medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of in-service incurrence
of a disease or injury; and medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury (disability). Hickson v. West, 13
Vet. App. 247, 248 (1999).
The threshold question that must be addressed here (as with
any claim seeking service connection) is whether the veteran
actually has the disabilities for which service connection is
sought. In the absence of proof of a present disability,
there is no valid claim [of service connection]. See Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992).
VA shall pay compensation in accordance with chapter 11 of
title 38, United States Code, to a Persian Gulf veteran with
a qualifying chronic disability that became manifest either
during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf
War, or to a degree of 10 percent or more not later than
December 31, 2006. The term "qualifying chronic disability"
means a chronic disability resulting from any of the
following (or any combination of any of the following):
(1) A medically unexplained chronic multisymptom illness
(such as chronic fatigue syndrome, fibromyalgia, and
irritable bowel syndrome) that is defined by a cluster of
signs or symptoms; or (2) Any diagnosed illness that the
Secretary determines warrants a presumption of service-
connection; or (3) An undiagnosed illness in a veteran who
exhibits objective indications of chronic disability
resulting from an illness or combination of illnesses
manifested by one or more signs or symptoms such as those
listed below, provided that such disability by history,
physical examination, and laboratory tests cannot be
attributed to any known clinical diagnosis.
"Objective indications of chronic disability" include both
"signs," in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.
For purposes of this section, disabilities that have existed
for 6 months or more and disabilities that exhibit
intermittent episodes of improvement and worsening over a 6-
month period will be considered chronic. The 6-month period
of chronicity will be measured from the earliest date on
which the pertinent evidence establishes that the signs or
symptoms of the disability first became manifest.
For the purposes of this section, signs or symptoms which may
be manifestations of undiagnosed illness include, but are not
limited to: (1) Fatigue
(2) Signs or symptoms involving skin
(3) Headache
(4) Muscle pain
(5) Joint pain
(6) Neurologic signs or symptoms
(7) Neuropsychological signs or symptoms
(8) Signs or symptoms involving the respiratory system (upper
or lower)
(9) Sleep disturbances
(10) Gastrointestinal signs or symptoms
(11) Cardiovascular signs or symptoms
(12) Abnormal weight loss
(13) Menstrual disorders.
Compensation shall not be paid under this section if there is
affirmative evidence that an undiagnosed illness was not
incurred during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf
War; or if there is affirmative evidence that an undiagnosed
illness was caused by a supervening condition or event that
occurred between the veteran's most recent departure from
active duty in the Southwest Asia theater of operations
during the Persian Gulf War and the onset of the illness; or
if there is affirmative evidence that the illness is the
result of the veteran's own willful misconduct or the abuse
of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
The record shows that the appellant is a Persian Gulf War
veteran and, therefore, that the initial threshold criterion
is met for service connection for disabilities under the
provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
Since the veteran failed to report for the VA examination
scheduled for March 2007 and did not request to reschedule,
the claim must be decided on the evidence of record. See 38
C.F.R. § 3.655.
IV. Analysis
As set forth, payment of VA disability compensation under the
provisions of 38 C.F.R. § 3.317 requires objective
indications of chronic disability. Although post service
medical records included subjective complaints of a skin
rash, the records were negative for specific physical
findings or diagnostic tests that indicated that the veteran
had a chronic skin condition. There also were no findings to
support an undiagnosed skin-related illness. In the absence
of specific verification that the veteran does indeed have a
chronic skin disorder, the criteria of § 3.317 are not met.
Service connection for an undiagnosed illness manifested by
involvement of the skin due to environmental hazards from the
Gulf is denied.
Here, the veteran did not present any competent (medical)
evidence of a current skin condition. The veteran was
specifically advised that to establish service connection for
a claimed disability, as a threshold requirement he must show
he actually has such disability. SMRs dated in February 1992
showed treatment for a rash to the body, arms and legs for
the past three days and an examination was positive for
erythemic macules noted on trunk and extremities bilaterally.
It was noted that the etiology of the rash was unknown, that
the veteran was working in the scullery washing dishes, and
the rash was aggravated by heat. Subsequent treatment
records were completely negative regarding any complaints,
treatment, or diagnoses of a skin condition.
There were no post service medical records that showed that
the veteran had a current chronic skin condition. In October
2004, a physical exam of the skin showed that the skin was
warm and dry, without rash or pallor, cyanosis, or jaundice.
In June 2006, the veteran indicated that there was no record
of him being treated by a dermatologist who placed him on
Nizoral cream for an intermittent rash on his chest and
abdomen. He indicated that he wanted to see the
dermatologist again, but did not have a current rash. As the
veteran failed to report for the March 2007 VA examination, a
decision must be decided on the evidence of record.
Consequently, the threshold requirement for establishing
service connection for a chronic skin condition, i.e.,
competent evidence that the veteran now has a chronic skin
condition is not met.
While the appellant has raised unsubstantiated theories that
he has a skin condition that is related to his service,
including the rash he had in service, he has not alluded to
or identified evidence of, a competent basis for medically
relating any current skin disorder to service or the rash
noted therein.
While the Board does not doubt the sincerity of the veteran's
beliefs regarding his claim for service connection for a skin
condition, as a lay person without the appropriate medical
training or expertise, he simply is not competent to provide
a probative opinion on a medical matter-such as the medical
relationship between any current skin disorder and the noted
rash in service. See Bostain v. West, 11 Vet. App. 124, 127
(1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge"). As such, the veteran's
assertions, alone, while considered by the Board, cannot
provide a basis for a grant of service connection for a
chronic skin condition.
Thus, while the Board is sympathetic to the veteran's claim,
under these circumstances, the claim for service connection
skin condition must be denied. In reaching this conclusion,
the Board has considered the applicability of the benefit-of-
the-doubt doctrine. However, as the competent evidence
weighs against the claim, that doctrine is not applicable in
the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
There is a preponderance of evidence against this claim.
Accordingly, it must be denied.
ORDER
Service connection for a chronic skin condition, including as
an undiagnosed illness manifested by involvement of the skin
due to environmental hazards from the Gulf is denied.
REMAND
Under 38 U.S.C.A. § 5103A, VA's duty to assist includes
providing the claimant a medical examination or obtaining a
medical opinion when such an examination or opinion is
necessary to make a decision on a claim. A medical
examination or medical opinion is deemed necessary if, in
part, the record does not include sufficient competent
medical evidence to decide a claim. In this case, such an
examination is necessary. 2002 treatment records from Dr. E.
M. M. showed that the veteran had complaints of sharp low
back pain with numbness in his right thigh. He was diagnosed
with right sacroiliitis. An October 2004 treatment record
from Lubbock VA Outpatient Clinic included an assessment of
degenerative joint disease of the right knee status post
arthroscopic surgery with partial repair of the medial
meniscus and mild low back pain secondary to altered gait
because of right knee. However, on July 2005 VA examination,
the examiner found no function disability of the right knee
or lumbar spine and that the clinical examination and x-rays
of the spine were totally negative. During his October 2005
DRO hearing, the veteran testified that his service-connected
right knee affected the way that he walked and ultimately
caused him to have low back pain. He stated that he could
not put any pressure on his right knee and that a VA doctor
told him that his back pain was related to his right knee
Here, the medical evidence of record, as well as the
veteran's contentions are insufficient to address all the
medical questions raised by the issue on appeal. Among these
is a question of whether the appellant has a current low back
disorder, and if so, whether his low back disorder was caused
or aggravated by his service-connected right knee disorder.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be asked to
identify all VA and non-VA medical
treatment providers who have treated him
for a low back disorder, since his
discharge from service. Complete records
of such treatment should be obtained from
all sources identified that have not
already been associated with the claims
file.
2. The RO/AMC should arrange for the
veteran to be afforded an orthopedic
examination to determine whether the
veteran has a current low back disorder
and whether the low back disorder was
caused or aggravated by his service-
connected right knee disorder. The
examiner must review the claims file and
note that review in the report. Any
indicated tests or studies should be
completed. The examiner should list any
low back disorder found on examination,
and as to each diagnosis indicate whether
it was (a) caused or (b) aggravated by
(and if so, to what degree) the veteran's
right knee disorder. The examiner must
explain the rationale for all opinions
given.
3. It should be documented in the record
that the veteran was provided notice
informing him of the scheduled VA
examination, and notified of 38 C.F.R.
§ 3.655 (which provides that when a
veteran fails to report for an examination
scheduled in connection with an original
compensation claim, the claim will be
decided based on the evidence of record).
4. The RO/AMC should arrange for any
further development suggested by the
results of the development sought, and
then readjudicate this claim. If the
claim remains denied, the RO/AMC should
issue an appropriate supplemental
statement of the case and provide the
appellant and his representative the
opportunity to respond. The case should
then be returned to the Board for further
appellate review, if otherwise in order.
No action is required of the appellant
until he is notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2006).
______________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs